Posted on October 15, 2020 by AdminUN

I WILL BURN DOWN YOUR HOUSE!

EEOC long ago ruled that it constitutes illegal reprisals for a manager to tell an employee who has filed an EEO complaint that was the “wrong way to go about getting a promotion.” (Binseel v. Dep’t of Army, EEOC No. 05970584 (1998).  So when a manager recently told an employee that he would burn down his house if he pursued an EEO complaint you can imagine how easy it was for EEOC to award that employee money damages and order the agency to consider disciplining the employee. If you hear of statements falling anywhere between these two from managers upset about potential or actual EEO charges there is a way to fix it.  See Jefferey K. v. Louis DeJoy, Postmaster General, EEOC No. 2019003406 (2020).

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Posted on October 8, 2020 by AdminUN

OH, HOW THEY LIE

FLRA Member Kiko made a point on her bio to mention that in her spare time she works with her church’s women’s group and Member Abbott majored in religion. Yet, these self-promoting theists have no problem making deliberate misstatements, commonly known as lies to those who have adopted the Ten Commandments.  It is as if they are not just channeling President Trump, but also Jim and Tammy Bakker. Their latest fib popped up early in a new decision declaring that they were replacing the de minimis test for determining when an agency must bargain with a “sufficiently significant” impact on conditions of employment standard. They said this was necessary because case law shows that the de minimis test “…triggers an agency’s duty to bargain whenever management has made any decision, no matter how small or trivial….” If true, that might be a good foundational reason for making this change, but it is just not true. Not only has the U.S. Court of Appeals used the de minimis test to deny a union the right to bargain in 446 F.3d 162 (2005), but the Authority itself has used it to deny bargaining multiple times, e.g., 59 FLRA 728 (2004), 59 FLRA 46 (2004), 58 FLRA 363 (2004). We will not bother you with all the times ALJs and arbitrators used it to deny bargaining. So that is lie #1 in their decision. Continue reading →

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Posted on October 8, 2020 by AdminUN

WHAT DID THIS UNION DO WRONG?

Here are the facts.  See if you can figure out two things the union did wrong.  The agency had a practice of placing a guard at each of its strategically important locations around its property every shift.  When it suddenly changed that by requiring one staff person to cover two strategic locations per shift rather than one, the union charged management with violating the contract.  The clause at issue read as follows: “The Employer agrees to lower inherent hazards to employees to the lowest level possible without relinquishing its management rights.  A ‘strategic location’ is defined as a self-contained area and can only be safely secured by a single officer.”  The union grievance asked for a return to the prior staffing level and that is what the arbitrator ordered. However, FLRA overturned the award saying that it intruded too heavily on management’s right to assign work.  Have you identified the two errors yet? Continue reading →

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Posted on September 22, 2020 by AdminUN

UNION REP TEST #10 (Crediting Plans) 

We just read a Dept. of Treasury case where it was ordered to retroactively promote an accountant because the selecting officials on two promotions packages stumbled all over themselves (aka made stuff up) on the witness stand trying to explain how they made their selection decisions. They contradicted the written record, their agency attorney’s position, the agency’s final decision, and themselves. (See Rigoberto A., v. Mnuchin, Dep’t. of the Treasury, EEOC No. 2019003131 (2020).  By the end of the case, the agency had four different explanations on the record for why it did not select the employee.  It is a great example of why a union should get a copy of the agency’s crediting plans that tell ranking panels how to rate applicants whenever grieving non-selection.  Unfortunately, FLRA allows agencies a lot of discretion to keep the plans out of bargaining unit hands.  That means union reps have to be very precise when making a demand for the plan.  See if you can identify which one or ones of the following situations gives the union rep the best chance of getting the plan:  Continue reading →

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Posted on September 22, 2020 by AdminUN

EEOC ORDERS RETRO INCENTIVE AWARD PLUS $5,000 SWEETENER

Throughout the year, the employee’s first and second line supervisors (S1 and S2) led him to believe that he was going to be rated at the top level.  In fact, that is how they rated him until the third line supervisor (S3) ordered them to lower their recommended appraisal. Suspecting that other employees of different races and genders were not treated the same way, he filed an EEO complaint claiming disparate treatment. And here is how he won big time. Continue reading →

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Posted on August 20, 2020 by AdminUN

A BACK-TO-SCHOOL GUIDE TO FFCRA CHILD CARE LEAVE

Thought we would pass along a Q&A guide from fellow bloggers at FMLA Insights.  Although aimed at employers, it explains well employee rights that unions can enforce when schools are not fully operating.  Our advice is to pass it along to your members so they have an idea of their rights 

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Posted on August 17, 2020 by AdminUN

HOW A GRIEVANCE CAN ALSO ALWAYS BE A ULP

The two Trump appointees are on the FLRA solely to weaken unions and collective bargaining and their favorite weapon is to overturn arbitrations case that employees win.  They have been able to take tens of thousands of dollars in victories employees have won because of union error. Unless a grievance over a contract, regulatory, or statutory violation includes an unfair labor practice allegation unions cannot take the FLRA to court to have federal judges force the two Trumpettes follow the law. Consequently, every time a union files a grievance it should try to also allege a ULP violation. Here is how that can be done. Continue reading →

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Posted on August 17, 2020 by AdminUN

UNION’S OPTIONS WHEN AN AGREEMENT PROVISION IS DECLARED UNENFORCEABLE

FLRA long ago ruled that even if an agency agreed to a particular agreement provision (or FSIP imposed it) and the agency head approved it as legal, the agency can declare it legally unenforceable at any time during the life of the agreement.  That leaves a union and its members very vulnerable to the agency agreeing to something just to get a new agreement in place and then gutting the heart of that deal by voiding a clause for something as simple as a single word in the provision.  Here is how a union can protect itself it that situation. Continue reading →

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Posted on August 10, 2020 by AdminUN

WHEN IS AN AGENCY PROPOSAL EVIDENCE OF BAD FAITH BARGAINING? 

If you are looking for proof that the agency has engaged in bad faith bargaining, be sure to examine the proposals it has made. The courts have held in the private sector that if “…a demand is clearly designed to frustrate agreement on a collective-bargaining contract,” it can be grounds for declaring that the agency bargained in bad faith. That puts the union on the remedy doorstep of voiding any contract that came out of that bad faith bargaining. For example, an “unrealistically harsh or extreme proposals can serve as evidence that the party offering them lacks a serious intent to adjust differences and reach an acceptable common ground.” See Liquor Indus. Bargaining Group, 333 N.L.R.B. 1219, 1220 (2001) for a good discussion of this body of law. Here are some signs proposals are evidence of bad faith bargaining:  Continue reading →

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Posted on August 8, 2020 by AdminUN

ARBITRATING CASES FOR NON-MEMBERS:  MUNCHAUSEN-BY-UNION SYNDROME

Any union leader who thinks dues-paying members’ money should be spent arbitrating cases for non-members is — 

  1. Out of his/her mind
  2. Has a low self-image
  3. A coward
  4. Uniformed about the law
  5. Keeping their own union weak
  6. All of the above.

That’s right. The Answer is “6.”  Sorry, if you think that is harsh, but it is based on decades of experience running high-membership unions. Here’s why.  Continue reading →

Posted in Membership Building | Tagged | 2 Comments